in Re David Cornett ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-22-00191-CR
No. 10-22-00192-CR
No. 10-22-00193-CR
No. 10-22-00194-CR
No. 10-22-00195-CR
No. 10-22-00196-CR
No. 10-22-00197-CR
No. 10-22-00198-CR
No. 10-22-00199-CR
No. 10-22-00200-CR
No. 10-22-00201-CR
No. 10-22-00202-CR
No. 10-22-00203-CR
IN RE DAVID CORNETT
Original Proceeding
From the 40th District Court
Ellis County, Texas
Trial Court Nos. 37235CR, 37236CR, 37237CR, 37238CR,
37239CR, 37240CR, 37241CR, 37242CR, 37243CR,
37244CR, 37245CR, 37246CR, and 37247CR
MEMORANDUM OPINION
After pleading guilty and waiving his right to appeal 13 convictions, David
Cornett, relator in these proceedings, challenged the convictions by filing a “Motion for
Nunc Pro Tunc Order to Remove the Improper Cumulation Order and Illegal Sentence
in Cause No. 37235-37247CR” in each case. When the trial court, respondent in these
proceedings, denied the motions, relator appealed. We dismissed the appeals because
we have no jurisdiction of the appeal of a denial of a motion for judgment nunc pro tunc.
See Cornett v. State, 2022 Tex. App. LEXIS 3229, at *1 (Tex. App.—Waco May 11, 2022, no
pet. h.). Consequently, relator’s Petitions for Writ of Mandamus regarding the 13
convictions were filed on June 13, 2022, and in those petitions, relator requests we order
respondent to grant relator’s Motion for Nunc Pro Tunc Order in each case. 1
There are procedural problems with these petitions, such as, the respondent (the
trial court judge) and the real party in interest (the State) were not served as required by
the Texas Rules of Appellate Procedure, and the appendices attached to the petitions
were not properly certified. See TEX. R. APP. P. 9.5, 52.3 (k)(1)(A), and 52.7. However, to
expedite this decision, we use Rule 2 to suspend the operation of these rules. TEX. R. APP.
P. 2.
The purpose of a nunc pro tunc judgment is to provide a method for trial courts to
correct the record when there is a discrepancy between the judgment as pronounced in
court and the judgment reflected in the record. Blanton v. State, 369 S.W.3d 894, 897-98
(Tex. Crim. App. 2012). The corrections must reflect the judgment that was actually
rendered but that for some reason was not accurately entered into the record at the time
of the judgment. Id at 898. Further, nunc pro tunc judgments are limited to clerical
mistakes or errors in a judgment; not for errors involving judicial reasoning. Id.; see State
1
Technically, in his prayer, relator asked us to order respondent to rule on relator’s motions. Respondent
has already ruled on the motions, and relator’s disagreement with those rulings is the subject of these
proceedings.
In re Cornett Page 2
v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994) (applying former Texas Rule of
Appellate Procedure 36); Jackson v. State, 362 S.W.3d 817, 819-20 (Tex. App.—Amarillo
2012, no pet.). There is nothing in this record to suggest respondent would be correcting
a clerical mistake if respondent granted relator’s motion. See Wilson v. State, 677 S.W.2d
518, 521 (Tex. Crim. App. 1984) (there must be proof that the proposed judgment was
actually rendered or pronounced at an earlier time).
Relator raised four issues in his Motion for Nunc Pro Tunc Order. They are as
follows:
1. Improper cumulation/stacking order in trial court cases numbers 37235
through 37247CR;
2. Double jeopardy in trial court case numbers 37236, 37237, 37240, 37241,
37245, and 37246CR;
3. Unauthorized sentence in trial court case number 37247CR; and
4. Prohibited Sexual Conduct Time-barred in trial court case number
37237CR.
These complaints are not requests for the correction of clerical errors. They are post-
conviction complaints about the propriety of sentences and various provisions in the
felony judgments relating to stacking, double jeopardy, unauthorized sentence, and
statute of limitations; not clerical errors. In other words, these are post-conviction attacks
on otherwise final judgments of felony convictions. Relator’s remedy, if any, is by the
route he has already used to attack at least one of those judgments, which he
acknowledges was unsuccessful, namely an application for a writ of habeas corpus,
specifically an article 11.07 writ. See TEX. CRIM. PROC. art. 11.07.
In re Cornett Page 3
Accordingly, because relator has an alternative legal remedy via an article 11.07
writ proceeding, over which we have no jurisdiction, see Olivo v. State, 918 S.W.2d 519,
525 n.8 (Tex. Crim. App. 1996) (jurisdiction); see also TEX. CODE CRIM. PROC. arts. 11.05,
11.07; Ex parte Mendenhall, 209 S.W.3d 260, 261 (Tex. App.—Waco 2006, no pet.), his
petitions for a writ of mandamus are denied.
Relator’s motions for leave to file the petitions are dismissed as moot.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Petitions denied
Motions dismissed as moot
Opinion delivered and filed June 29, 2022
Do not publish
[OT06]
In re Cornett Page 4